Quinton v. Board of Claims

• Decision Date: 26 November 1932
• Citation: 54 S.W.2d 953
• Parties: QUINTON v. BOARD OF CLAIMS. HORTON v. SAME.
• Court: Tennessee Supreme Court

54 S.W.2d 953

QUINTON v. BOARD OF CLAIMS.

HORTON v. SAME.

Supreme Court of Tennessee.

November 26, 1932.

Appeal from Chancery Court, Hamblen County; Ben Robertson, Chancellor.

Petition for certiorari by Mrs. J. D. Quinton and by Mrs. A. Q. Horton against the Board of Claims, to review an order of the Board of Claims. From a decree sustaining the petitions, the State appeals.

Reversed, and petitions dismissed.

Chas. S. Stephens and Geo. W. Jaynes, both of Morristown, for Mrs. J. D. Quinton.

O. L. McMahan, of Morristown, for Mrs. A. Q. Horton.

Wm. C. Cook, of Dickson, for Board of Claims.

COOK, J.

In these causes petitions for certiorari were filed under section 9008, Code of 1932, to review an order of the board of claims. The state appealed from the decree of the chancellor sustaining the petitions. Petitioners prayed: (1) For writs of certiorari to bring into the chancery court the orders and judgment of the board of claims and the record and a transcript of the evidence presented to the board; (2) that the court review the orders and judgment of the board of claims and award petitioners damages, to be paid by the department of highways and public works, as provided in chapter 75, Pub. Acts of 1931. The cases rest upon the same facts and are controlled by the same legal propositions.

August 22, 1932, the automobile driven by Mrs. Horton skidded and turned off the embankment after crossing a bridge one mile east of Sweetwater on Highway No. 2. Mrs. Horton and Mrs. Quinton, the only occupants of the car, suffered injuries. Mrs. Horton's car was damaged. Claims for damages were presented by both occupants of the car to the board of claims. Their claim for damages rested upon allegations that the accident was caused by the negligence of state highway employees in failing to station guards or put out caution signals after putting tar or oil on the approaches to the bridge.

Upon evidence presented by depositions and affidavits shown in the certified transcript, and upon the report of the claims agent of the state acting for the board, the causes were disposed of by the board of claims. We quote from the minutes showing the action of the board:

"Mrs. J. D. Quinton vs. State Highway Department. Claim for compensation.

"This cause came on this day to be heard before the Board of Claims, upon the report of the Law Agent, recommending the claim be disallowed and upon argument of counsel and on all of the record and proof therein. It appeared to the Board of Claims that the proximate cause of the injury complained of was the result of acts of negligence of Mrs. A. Q. Horton while the claimant was a passenger and guest in the car of Mrs. A. Q. Horton.

"The Board of Claims is of the opinion that there is no liability upon the part of the State Highway Department for the injury therein complained of, that the State Highway Department is not insurer of the transients upon the State Highways; and that the negligence of Mrs. Horton is imputable to her guest, Mrs. Quinton.

"It is, therefore, ordered by the Board of Claims that said claim be dismissed."

"Mrs. A. Q. Horton vs. State Highway Department. Claim for compensation.

"This claim came on this day to be heard before the Board of Claims upon exceptions to the report of the Law Agent, recommending that the claim be disallowed, and argument of counsel, and all of the proof as in the record contained.

"The Board of Claims is of the opinion that there is no liability upon the Highway Department for the payment of said claim; that acts of contributory negligence upon the part of the claimant were the proximate cause of said accident and injury, the Department of Highways and Public Works not being the insurer of the safety of transients on the public highways of the State.

"It is, therefore, ordered that said claim be dismissed."

It is shown by the record that the board of claims considered the claim of both parties upon the report of the law agent employed by the board, exceptions by both claimants to the law agent's report, and the evidence accompanying his report. The exceptions appear at page 13 of the transcript and show that the excepting claimants challenged the weight and sufficiency of the evidence upon which the report of the law agent was grounded. The action of the board of claims in refusing to award damages is challenged, and a review is sought by this proceeding under section 9008, Code of 1932, upon statements and allegations in the petitions so similar that the quotation from Mrs. Quinton's petition sufficiently presents their insistence:

"Said Board of Claims created by chapter 75 of the Public Acts of 1931, met in special session at the call of the Chairman on March 29, 1932, in his office at Nashville, Tennessee, to hear and consider her petition and said Board did hear and consider her petition, upon depositions and other proof introduced by her at said hearing, and that said Board was of opinion that there was no liability upon the part of the State Highway Department for the injuries complained of, and ordered her claim and petition dismissed.

"The proof introduced at the hearing consisted of the depositions of petitioner and many eye witnesses to the accident and to the condition of the road; and also of witnesses who testified that there was no flag or signal to warn travelers of the condition of said road.

"And petitioner will show to your Honor that the evidence introduced by her before the Board of Claims at its special session on March 29th, 1932, fully established all of the averments and facts alleged in this petition.

"She is advised that the order of the Board of Claims is erroneous; that by the provisions of Chapter 75 of the Public Acts of Tennessee, 1931, the Honorable Board was empowered to pay her damages, because the negligence of the Highway Department was such as to entitle her to a judgment in an action at law.

"Petitioner is advised that her only remedy now is to file her petition for certiorari; that a complete transcript of the proceedings before the Board of Claims may be certified and forwarded to this Court over which your Honor presides."

She assigns, among others, errors as follows:

"The learned Board of Claims erred in finding and holding that there was no liability upon the part of the State Highway Department for the injury complained of by petitioner because the negligence of Mrs. Horton is imputable to her guest, Mrs. Quinton. The proof does not show that Mrs. Horton was guilty of contributory negligence."

In overruling the exceptions of the petitioners to the report of the law agent and by adopting his report, the board found that the employees of the highway department were negligent in failing to station a watchman or put out signals to warn travelers of the fresh-laid tar and oil, and also found that the testimony of Mrs. Horton and Mrs. Quinton established the fact that their own contributory negligence was the proximate cause of the accident which resulted in their injuries.

It appears from the transcript of the evidence on which the board rejected the claims that Mrs. Horton, an experienced driver, was driving rapidly when she approached the bridge; that she and Mrs. Quinton saw the tarred surface and saw also an approaching car skid as it came off the bridge. While Mrs. Horton slowed down, she states that she ran on after slowing down at a rate of at least 20 miles an hour — Mrs. Quinton thinks 15 miles an hour. In this connection we quote Mrs. Horton's testimony:

"Mrs. Horton you approached the bridge from the east?

"Yes.

"How is the road there, level or uphill?

"It's up hill; a slight grade.

"No curve at the east side?

"Yes there is a slight curve at the east side.

"You can see through the bridge from either side?

"Yes you can.

"This tar that you speak of, how close were you to it when you first observed it?

"About 10 feet I would say.

"At what rate of speed were you travelling then?

"I couldn't say how fast but I slowed up considerably when I saw it was wet.

"Give us your best judgment.

"35 or 40 miles I guess. I was not going over 20 or 25 miles when I was on the tar.

"And you observed it about ten feet, before you got to it?

"Yes.

"When did you slacken your speed?

"As much as I could before I got on it and as much as I could after I got on it.

"You slackened your speed about ten feet before you hit the tar?

"This car coming was skidding toward me and I could see the danger just as soon as I got on it.

"How far ahead did you see this car coming?

"Five or six feet.

"You never observed it coming through the bridge?

"It was nearly over the bridge.

"As you went on the bridge, you passed the car coming off of it?

"Yes sir.

"Did you slow down to pass the car?

"I slowed down for all of it.

"Is it your usual custom to slow down to pass a car?

"Yes I generally do.

"Did you slow down on account of the car?

"Yes.

"And then you ran 10 feet. For what distance along the road was this tar at the east end of the bridge?

"I couldn't say. There was more tar on the east end than the west.

"Give us your best judgment as to how much was on the east end?

"Just as I got over the bridge?

"What was the length of the tar spread along the road on the east side of the bridge?

"Just a small amount on the east side.

"How many feet? About how far?

"I would say three or four feet; just a small amount before we got on to the bridge.

"Then it had only been spread three or four feet on the east side?

"I really can't say. It seems there was as much as there would be to that door there before we got on to it; from here to that door there.

"Do you mean this door here?

"Yes.

"How many feet is that Mrs. Horton?

"Well, 15 or 20 feet; there may have been more.

"Well it was the same kind of tar that was at the other end of the bridge?

"Yes. * * *

"What was the length of the bridge from one end to the other?

"I would say it was from this wall almost to where the end of...